The pandemic has inarguably made custody more severe. Prisoners spend more time in their cell, have fewer visits, and face a heightened risk of infection. The higher courts have established that sentencing courts should account for such hardship. The below is a round-up of the relevant authorities.

The core authority is R v Christopher Manning [2020] EWCA Crim 592. The Lord Chief Justice established that sentencing courts should account for the likely impact of custody on an offender and others. The effects of the pandemic are relevant to this assessment (see §41).

Also relevant is R v Jones [2020] EWCA Crim 764. This case concerned an appeal against a sentence imposed six days before the first lockdown. The appeal succeeded. The Court agreed at §19 that the “present, exceptional circumstances” justified a reduction (see also John Lockett v Minstrell Recruitment Limited [2021] EWCA Civ 102).

There is, however, no entitlement to a ‘Covid discount’. Whether a reduction is granted will depend on all the circumstances of the case (Korta-Haupt v Chief Constable of Essex [2020] EWCA Civ 892 at §30). The courts are also not obliged to revisit every sentence passed prior to the pandemic (R v Randhawa [2020] EWCA Crim 1071 at §15).

The likelihood of the Court of Appeal reducing a sentence decreases for serious offences. In such cases, the Court will need “particularly cogent evidence of the harsh impact of imprisonment [on the prisoner] because of the pandemic” (R v Whittington (Tyler) [2020] EWCA Crim 1560. This is because the pandemic is likely to have a relatively lesser impact for long-term prisoners (see §30).

The pandemic is also relevant to early release. In Chelsea Football Club Ltd v Nichols [2020] EWHC 827 (QB) the prisoner argued for early release. His circumstances had changed since his sentencing. He was now a “vulnerable person” within the meaning of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (now repealed). The Court agreed and found that he was at increased vulnerability to COVID-19. Early release was in the interests of both the prisoner and the public (see §27).

In Lakatamia Shipping Company Limited v Nobu Su [2020] EWHC 806 (Comm), however, the Court concluded differently. The application was heard 8 days before the prisoner (aged 62) was due for release. He argued that the pandemic made his sentence more severe and so he should be granted early release. The Court did not dispute that the risk from Covid-19 was a relevant concern. It did, however, conclude that there was no evidence that this particular prisoner was at an increased risk (see §43).  

The impact of the pandemic is likely to be felt throughout 2021. It will continue to make prison conditions even more difficult than usual. The above case law will continue to be relevant to criminal practitioners. It is likely to evolve in response to the changing nature and gravity of the pandemic.